and is of the opinion that the Court of Appeals did not intend to foreclose OSHA modification of its own interpretive rule regarding the antidiscrimination provisions of the Act based upon further study and evolving expertise.
The Court of Appeals in Leone defined the issue before it to be "whether an employee who participates in a walkaround inspection is entitled to pay for that time under the provisions of either OSHA or FLSA." Leone 173 U.S.App.D.C. at 210, 523 F.2d at 1159. The Court of Appeals implicitly recognized that the Occupational Safety and Health Act, apart from the FLSA, could require compensation to employees participating in a walkaround inspection. Upon failing to reach a conclusion after examination of 29 U.S.C. § 657(e) and its legislative history, the Court then addressed plaintiffs' argument "that the policies of OSHA require that the time be considered "hours worked,' and thus compensable, under FLSA." 173 U.S.App.D.C. at 210, 523 F.2d at 1159. In rejecting this argument, the Court of Appeals noted that the District Court (Smith, J.) had relied upon a ruling by the Secretary of Labor that walkarounds need not be compensated under the FLSA and held that Judge Smith had properly deferred to the Secretary's ruling. While the Court of Appeals indicated by way of Dicta that it would have independently reached the same result as the Secretary on the FLSA issue, the opinion offers no guidance for the present situation where the Secretary has determined that FLSA principles require compensation for OSHA walkarounds. Moreover, the Court of Appeals did not have before it a case brought under 29 U.S.C. § 660(c) and the Leone decision cannot be interpreted as removing an employer's failure to pay for walkaround time from the coverage of Section 660(c).
In any event, appropriate judicial respect for an agency's interpretation of a remedial statutory scheme which it administers requires a full and fresh inquiry into the validity of the interpretive rule here at issue.
Examination of Sections 657(e) and 660(c) of the Act and review of the sparse legislative history concerning these sections does not compel any inexorable conclusion. The Court notes, however, that the Occupational Safety and Health Act of 1970 was enacted "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . . ." 29 U.S.C. § 651(b). This Congressional intent is implemented through the development of safety and health awareness among employers and employees, the promulgation of safety standards and through the establishment of an enforcement program which calls for workplace inspections directed toward the discovery and elimination of safety and health hazards. See 29 U.S.C. § 651(b). As the Senate Report on the legislation makes clear, employee participation in the physical inspection of workplaces is considered both highly desirable and necessary. See Committee Print, Legislative History of the Occupational Safety and Health Act of 1970, 92nd Cong. 1st Sess. (June 1971) at 151 (hereinafter referred to as "Legislative History"). In order to protect and encourage employee participation in the statutory scheme, Congress enacted an extremely broad antidiscrimination provision which prohibits any person from discriminating In any manner against employees because of the exercise of any rights afforded by the Act. 29 U.S.C. § 660(c)(1); Legislative History at 857.
It is apparent from the words of the statute and from the legislative history that Congress did not address the question of who was to bear the economic burden of employee participation in workplace inspections. Congress only concerned itself with the necessary and desirable extent of employee participation in the enforcement process. See Legislative History at 430; Leone, 173 U.S.App.D.C. at 210-212, 523 F.2d at 1159-1161. It is also clear that Congress viewed employee participation, particularly in the enforcement area, as an essential aspect of its program for industrial safety and health. 29 U.S.C. §§ 655(b)(1), (6) and (7), 657(f)(1), 659(c) and 660(a). As the Court of Appeals noted in Leone, this "policy decision" regarding employee compensation for participation in walkaround inspections is committed to Congressional discretion and to the expertise and informed judgment of the Secretary of Labor. This Court feels compelled to abide by the Secretary's interpretive ruling. As observed by the Court of Appeals:
Opinions by the head of an administrative agency, "while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.' (citations omitted); this deference is tempered, however, when the ruling is inconsistent with Congressional policy (citations omitted).
Leone, 173 U.S.App.D.C. at 213, 523 F.2d at 1162-1163. See also Chisholm v. F. C. C., 176 U.S.App.D.C. 1, 538 F.2d 349 (1976), Cert. denied, 429 U.S. 890, 97 S. Ct. 247, 50 L. Ed. 2d 173 (1976); Marshall v. Daniel Construction Co., Inc., 563 F.2d 707 (5th Cir. 1977).
The Secretary's ruling is in no way inconsistent with the Occupational Safety and Health Act or any other expression of Congressional policy.
To the contrary, requiring walkaround pay is plainly adapted to the effectuation of employee participatory rights afforded by Section 657(e).
One ground for the Secretary's decision is the realization "that management representatives are often paid for the time spent accompanying OSHA representatives during an inspection while the employees participating in the same activity are not." 42 Fed. Reg. 47345 (1977). This unrebutted finding by OSHA, coupled with the Department of Labor's determination that walkaround inspection time constitutes "hours worked" under the FLSA, effectively refutes any argument that non-payment occurs only because the employee is not performing compensable work during a walkaround inspection and leads to the undeniable conclusion that employees who are not paid for walkaround time are being discriminated against within the meaning of Section 660(c). See e.g., plaintiff's exhibits E, F, G and H.
Moreover, the Secretary has administered the Act for seven years, and based on this experience has determined that "employee participation and cooperation at the inspection stage has proved to be critically important to enforcement efforts under the Act." 42 Fed. Reg. 47344 (1977). The Secretary has also observed that "loss of pay involved (in a walkaround) would clearly constitute a significant economic disincentive to employees' exercising their express statutory right under section 8(a) to accompany a compliance officer during an inspection." Id. at 47344-47345. Accordingly, the Court cannot disagree with the Secretary's conclusion that refusal to compensate employees for time spent in a walkaround "has a twofold and related impact: It is inherently destructive of the employees' right to participate in the walkaround and, consequently, impedes the free flow of information between employees and representatives of the Secretary which is so critical to effective enforcement of the Act." Id. at 47344. See NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S. Ct. 1792, 18 L. Ed. 2d 1027 (1967); NLRB v. Erie Resistor Corp., 373 U.S. 221, 83 S. Ct. 1139, 10 L. Ed. 2d 308 (1963).
The Court also upholds the validity of defendants' statutory interpretation which includes opening and closing conferences as part of the "physical inspection" of workplaces within the meaning of Section 657(e). Opening conferences are held, Inter alia, so that the nature, purpose and scope of the inspection may be discussed. 29 C.F.R. § 1903.7(a). As previously indicated, employee input at this stage is clearly a valuable aid in determining the most effective scope and direction of the inspection. This view is consistent with the entire statutory scheme which attempts to maximize employee participation. E.g., 29 U.S.C. § 657(f)(2).
A closing conference is the concluding aspect of a physical inspection where the results of the walkaround are summarized and is therefore an integral part of an inspection. See 29 C.F.R. § 1903; OSHA Field Operations Manual, Chapter V, Section D(7). Again, employees may effectively participate in the closing conference during which identifiable hazards are discussed.
The Court recognizes that neither the statute nor regulations, which are binding upon OSHA, See Vitarelli v. Seaton, 359 U.S. 535, 79 S. Ct. 968, 3 L. Ed. 2d 1012 (1959), expressly grant employees participatory rights in opening or closing conferences; employees are not, however, denied the right to participate. The Court finds that the Secretary's interpretation regarding opening and closing conferences is reasonably calculated to effectuate the remedial legislative purposes of the Occupational Safety and Health Act and must therefore be upheld.
OSHA's interpretive rule is also challenged for failure to comply with the notice and comment provisions of the Administrative Procedure Act. Interpretive rules and general statements of policy, contrasted with the implementation of independent legal requirements promulgated pursuant to validly delegated legislative authority are, however, specifically exempted from the notice and comment provisions of the Administrative Procedure Act. 5 U.S.C. § 553(b)(3)(A) and (d)(2); Gibson Wine Co. v. Snyder, 90 U.S.App.D.C. 135, 194 F.2d 329 (1952). Accordingly, the Court concludes that the defendants are not barred from reconsidering its own interpretive rules and that a new interpretation regarding discriminatory conduct may be implemented without affording interested parties prior notice and the opportunity to be heard.
Upon consideration of defendants' motion for summary judgment, plaintiff's cross-motion for summary judgment and the entire record, the Court finds that there are no material facts in dispute and that defendants are entitled to summary judgment as a matter of law on the issue of discriminatory conduct within the meaning of 29 U.S.C. § 660(c).